How do you abide by a NDA that you're denied a copy of?

In My Humble Opinion (IMHO)
#1

This is inspired by the Trump Administration NDAs, but not about them in a literal sense, since those NDAs are apparently unenforceable by virtue of the signatories being Federal employees.

But suppose a private business had required its employees to sign NDAs, and as the Trump Administration did, refuse to give the employees a copy of the NDA they’d signed?

ISTM there’s a fundamental problem here: if they are denied a record of what they’ve signed, the other party - their employer - has denied them the means of abiding by the terms of the agreement. After all, if you don’t know the specifics of the agreement, how can you know whether or not a given disclosure is or is not allowed by the agreement?

Maybe ignorance of the law is no excuse, but ignorance of the terms of an agreement you aren’t allowed to have a copy of - that would pretty much come with the territory.

Since IANAL, I’m curious to see what the board’s legal eagles think of this.

#2

You can remember what you signed or ask the counterparty if your proposed course of action will comply. The better practice is to keep a copy of the things you sign.

#3

President Trump’s NDAs are not enforceable, and his legal team knows this. They are just an excuse to drag folks into court and bankrupt them with legal fees. All to keep the public from finding out that Mr. Trump is no angel.

#4

I have signed multiple NDA’s over the years, both personally with other companies, and with other parties on the behalf of my company. In every incidence, I’ve signed two copies, one for my/our records and one for the other party. I would never sign an NDA without being given my own copy, and I’ve never seen a situation where the other party refuses to provide the copy - that’s an automatic non-starter. Most of the NDA’s I’ve been involved with have been mutual, two-sided agreements, so that it’s logical each party has their own signed copy. In the few cases I’ve signed one-way NDA’s (consulting work with another firm, employment NDA’s), I requested (and received) my own copy. You are always entitled to a copy even if you weren’t given one at the time. IANAL, but this is such a common practice in our field that the procedures are pretty straightforward. We do have our lawyer review any pending NDA, so we’re used to discussing the ramifications.

I would be curious to hear a lawyer’s opinion on the ramifications of NOT providing a copy of a signed NDA to one of the parties - my guess is the judge would not look favorably upon one party refusing to provide a copy signed by the other party.

#5

If I may widen the question, how about company policies that apply to you but you’re not supposed to be able to see them? I like to think that was a specific bout of idiocy in that particular HR’s department part, but how does that hold any kind of legal water, if it does? Location was Philadelphia.

#6

My uninformed opinion without the benefit of research is that you are right. It’s likely bad faith to seek to enforce an agreement when you’ve denied your counterparty access to a copy. It might disadvantage a claim even if it doesn’t defeat it entirely.

If the dispute were litigated, the counterparty could get a copy of the agreement during the discovery process. If the plaintiff refused, he could be sanctioned to include dismissal of his claim. If he asserted that he no longer had a copy, the parties disagreed about the NDA’s contents, and depending on the particular jurisdiction, the judge could probably allow testimony and other evidence to determine the terms of the contract (parol evidence rule notwithstanding). In the real world, the plaintiff has the obligation to prove his claim. Without a copy of the disputed contract, the judge likely won’t find in the plaintiff’s favor.

This sounds a bit bizarre. There are obviously more facts to be learned here so I won’t opine but I do wonder what the policies were and whether and how they were communicated to the employee.

#7

Are you talking about policies that existed in writing which you weren’t allowed to see or unwritten policies that they weren’t willing to put in writing? The first seems bizarre, but the second not so much.

#8

And… continuing to address Nava…
Were these policies ones that required the employee to take certain actions, or did they concern only the actions of others? Basically, were the policies done BY the employee, or done TO the employee?

#9

Similarly, a union that was trying to get me to sign up years ago wouldn’t give me a copy of the rules that I’d be agreeing to follow if I joined.

#10

To Nava’s point, when I managed people we always had to have them sign off that they’d gotten policies - or that they’d at least been pointed at the web site where they were available. I doubt legal was making us have employees sign that they’d been shown policies unless they’d been burned by “no one told me” But the company HQ was in California, which is one of the more employee friendly states

#11

Re. my question: they were written policies. Some of them required action by everybody in my location (such as the Home Office Dress Policy); others affected my benefits (the ridiculous pileup of micro policies regarding people moving house due to a change in jobs). The woman who was supposed to help people move was indignant that I’d not only dug up all the mountain of different micro policies but run a comparison between the three different ones which could apply to me. People either loved or hated that woman; I’m firmly in the hate camp, as I think some of the parts about the policies only make sense if she was getting a cut. Others, not even then.

I’m going to go on attributing it to idiocy. Thanks, all.